Business Legal Issues

MASSACHUSETTS SBDC NETWORK

• SMALL BUSINESS DEVELOPMENT CENTERS• UMASS AMHERST SBDC STATE OFFICE• BERKSHIRE REGIONAL SBDC• CENTRAL REGIONAL SBDC AT CLARK UNIVERSITY• NORTHEAST REGIONAL SBDC AT SALEM STATE UNIVERSITY• SOUTHEAST REGIONAL SBDC• UMASS BOSTON REGIONAL OFFICE & MINORITY BUSINESS

CENTER• WESTERN REGIONAL SBDC

• SPECIALTY CENTERS– MINORITY ASSISTANCE – MASS EXPORT CENTER – GOV’T PROCUREMENT (PTAC)

SBDC at Salem State University Counseling Outreach Sites

Salem (Regional HQ)Amesbury

BeverlyBillerica

GloucesterLawrencePeabody

REGIONAL SPONSORS

SBDC CONTACT INFORMATION

• PHONE 978-542-6343• FAX 978-542-6345• EMAIL SBDC@SALEMSTATE.EDU

• WEB SITE WWW.SALEMSTATE.EDU/SBDC– ONLINE CALENDAR OF UPCOMING WORKSHOPS– REGISTER ONLINE FOR WORKSHOPS– DIRECTIONS TO SBDC OFFICE & WORKSHOP

LOCATIONS

Business Law

http://www.westhillcounsel.com/900 Cummings Center, Suite 206-T

Beverly, MA 01915

Jennifer HoenigBusiness Attorney

978-274-7058

jhoenig@westhillcounsel.com

Megan TaylorOf Counsel, HR Consultant

978-274-7054

mtaylor@westhillcounsel.com

Business Law

Building Your TeamChoice of Entities and Formation

TaxationRecord Keeping

Intellectual PropertyWorkplace and Employees

Building Your TeamWith the Best Advisors

• Four Basic Advisors to all Companies– Accountants-CPA– Insurance Agent– Banker– Attorney

• Shop around, budget, and integrate

Factors to Consider

• Comfort Level• Expertise and Experience-Business Matters;

Client Industry• Scope of Work-Resources available to

handle• Fees – hourly vs. flat; alternative

arrangements reserved for start-ups; how to best budget for

• Don’t be afraid to negotiate!

Choice of Entity

• Sole Proprietorship

• Corporation- “C” and “S”

• Limited Liability Company: “LLC”

• Partnerships:– General Partnership– Limited Partnership (“LP”)– Limited Liability Partnership (“LLP”)

Considerations

• Ease of Formation/Incorporation

• Business Location and Jurisdiction – e.g., domestic vs. foreign incorporations

• Limited Liability

• Income Tax Treatment

• Ownership/Management Structure

• Exit Strategies

Intellectual Property: Protect Your Brand!

• Copyrights: ©

- Company Website

- Key Content

• Trademarks: TM or ®

- Company Name

- Company Logo

• Patents

Your Business Website

• Copyright© 2014 Westerly Widgets, Inc. All rights reserved.

Not © 2011 westerlywidgets.com.

• E-Newsletter, blog posts, etc.

• Terms of Use

• Privacy Policy

WISP

• Almost all businesses are required to have a Written Information Security Program on file in their business office under MA law.

• Purpose of WISP: to create effective administrative, technical and physical safeguards for the protection of personal information of residents of MA. Prevents fraud, protects privacy, identity theft and provides for notification if breached

Minimum Standards

• Develop, implement, maintain and monitor a written program to safeguard personal information.

• The program must fit the business

• The program must address paper and electronic data

• Concerned with reasonably foreseeable external and Internal risks

Record Keeping

• Corporate Records

• Personnel Records-hiring, payroll and performance

• Medical Records

• Business Records

• Tax Records

Employment, Pre-Hiring,Hiring, Benefits and Termination

• Laws have become and voluminous• At the outset, must develop a strategy for

dealing with employment and human resource issues-at all levels- i.e. from Top-Down.

• Collect the right Forms-I-9 (immigration status documents-verification of employment eligibility within 3 days of hiring), W-4, H-1B Visa if applicable, etc.

Interviewing And Selecting The Candidate: Prohibited And Risky Questions

• CORI Reform-5/4/12• Protected Classes• Residence, Lifestyle And Economic Status• Family Status• Union Allegiance• Criminal History• Immigration Status• Medical/Health Information• “Lifestyle”

Protected Classes: Military Service

You May Ask:• Have You Served In The U.S. Armed Forces?• What Is Your Military Service History?• What Experience Or Skills Did You Acquire?

Do Not Ask:• Have You Served In The Military of Another Country?• How/Why Were You Discharged?• Are You Receiving A Service-Related Disability

Pension?

Residence, Lifestyle, Economic Status

You May Ask About:• Address And Length of Residency• Willingness To Relocate If Job Requires• Ability To Meet Overnight Travel Requirements• Membership In Professional Societies Or

Associations• Ability To Commute• Availability To Work Overtime

Medical/Health Information

Can An Employer Ask An ApplicantTo Undergo A Medical Examination?• Only After An Offer• Must Be Job-Related

Do Not Ask About:• Workplace Injuries• Leaves of Absence• Genetic Information• Visible Physical Limitations• Health Insurance Coverage

Reference Checks

• Why Check References?

• Release From The Applicant

(Job Application)

• Types Of Reference Checks ○ Background Checks – in light of Mass.

CORI law.

• Practical Tips – including what is your company policy on giving references?

The Form I-9 Process

• Verification Of Employment Eligibility Of All Employees Required

○ Exceptions• Cannot Knowingly Hire, Recruit, Refer For A Fee

Or Continue To Employ Illegal Workers• Must Be Completed Within 3 Days, And

Retained For Longer of 3 Years or 1 Year After Employment Ends

• May be stored electronically

Critical Employment Policies: Limit Liability And Exposure

While Serving Your Business Needs

#10: Sexual And Other Harassment

• Zero Tolerance Policy

• When Does The Policy Apply?

• What Are Your Responsibilities?

• Report Harassment Complaints

• Prompt Investigation

• Disciplinary Action

• No Retaliation

• Best Practices – conduct annual training

Other Important Policies

• Electronic Communications (Including Social Networking)

• Data Security Protection• Commissions • Maternity/Paternity Leave (and FMLA, if applicable)• Mobile Device Policy• Remote Working Policy• Wage and Hour Policy (overtime)

Managing And Documenting Employee Performance, Discipline And Discharge

Regular Performance Evaluations And Improvement Measures

• Fair

• Timely

• Comprehensive

• No Surprises

Elements Of An Ideal Performance Evaluation Form

• Key Performance Measures○ Measures From Job Description○ Organizational Tasks○ Initiative○ Teamwork○ Reliability○ Knowledge Of Job○ Attendance - Punctuality

• Strengths/Weaknesses• Goals• Comments• Employee And Reviewer Signature And Acknowledgement

Effective Performance Improvement And Discipline System

• Articulate Clear Expectations

• Centralize Discipline And Be Consistent In Treatment

• Reduce Risk Of Litigation

• Support Defense In The Event Of Litigation

• Be Fair: The Punishment Should Fit The Crime

Contents of Written Warning

• Name/Date/Supervisor/Title• Prior Disciplinary Action• Current Disciplinary Action• Describe Specific Conduct• Describe Reasons For Disciplinary Action• Performance Improvement Plan• Specific Improvements Need to be Made• At-Will

Document, Document, Document!

• It Is Important To Document All Conversations With Employees Regarding Conduct Or Performance Problems!

• Documentation Tips

• Avoid Excess Documentation

• Personnel File Guidelines

Practical Tips

• Investigate Before Discipline

• Be Consistent

• Follow Up With Employee

The Decision To Discharge

• First Gather Facts/Conduct Thorough Investigation

• Follow All Company Policies And Procedures• Consider Whether Employee Is In “Protected

Category”• Consider Whether Employee Has Been Given

Sufficient Time To Improve Performance• Create Documentation: Why Discharge And

Why Now?• … And Review of the Decision

Termination Checklist

• Prepare For Termination Meeting

• Strategize Actions And Basis For Actions

• Benefits And Notices Required By Law

• New DUA Form Effective March 2009

• COBRA Notices

• Return of Company Property

• Shut Off Access to Company Systems

Dignified Termination Meetings

• Who Should Be There?

• What Should Be Discussed?

• Avoid Defamation By Conduct

• Severance Plan?

• Required Paperwork

• Unemployment Compensation